Mental Capacity ActMental Capacity ActPractitioners ForumPractitioners Forum

Lasting Powers of AttorneyLasting Powers of Attorney

This presentation will cover:This presentation will cover:

A close look at Lasting Powers A close look at Lasting Powers of Attorney (LPA’s)of Attorney (LPA’s)

What's differentWhat's different

Safeguards and benefitsSafeguards and benefits

What is an LPA?What is an LPA?

LPA’s replace Enduring LPA’s replace Enduring Powers of Attorney (EPA) as Powers of Attorney (EPA) as the way of appointing decision the way of appointing decision makers for a time when you makers for a time when you may lack capacitymay lack capacity

EPA’s made prior to 1EPA’s made prior to 1stst October 2007 can be used and October 2007 can be used and registered at any time in the registered at any time in the futurefuture

What is an LPA?What is an LPA?

LPA’s increase the range and type of LPA’s increase the range and type of decisions you can authorise others decisions you can authorise others to make on your behalfto make on your behalf

For the first time there is the choice For the first time there is the choice of allowing decisions to be made for of allowing decisions to be made for personal welfarepersonal welfare

Two separate types, two separate Two separate types, two separate forms, cannot be combined in one forms, cannot be combined in one documentdocument

Who can make an LPA?Who can make an LPA?

Anyone who is 18 and overAnyone who is 18 and over Must have capacity to Must have capacity to

understand the purpose and understand the purpose and effecteffect

Individuals only – not couplesIndividuals only – not couples Can be used to replace Can be used to replace

unregistered EPA’s or sit along unregistered EPA’s or sit along side themside them

Why make an LPA?Why make an LPA?

It gives the donor (maker) the choice It gives the donor (maker) the choice to plan for a time when they lack to plan for a time when they lack capacity to make decisions for capacity to make decisions for themselvesthemselves

For the first time you can appoint a For the first time you can appoint a decision maker of your choice decision maker of your choice relating to personal welfare mattersrelating to personal welfare matters

Important new safeguards have Important new safeguards have been introducedbeen introduced

Attorneys (person appointed) must Attorneys (person appointed) must pay regard to the Code of Practicepay regard to the Code of Practice

Best InterestsBest Interests

Attorneys are governed by the Attorneys are governed by the principles of the Mental Capacity principles of the Mental Capacity Act (MCA)Act (MCA)

Before any decision an attorney Before any decision an attorney must first be satisfied that it is in must first be satisfied that it is in the donors best intereststhe donors best interests

Attorneys must have regard to Attorneys must have regard to the Code of Practicethe Code of Practice

LPA’s – Property & AffairsLPA’s – Property & Affairs

An attorney can make any decision the An attorney can make any decision the donor would make in respect of finances donor would make in respect of finances and propertyand property

The decisions can be subject to restrictions The decisions can be subject to restrictions and conditions imposed by the donor within and conditions imposed by the donor within the LPAthe LPA

Generally attorneys will:Generally attorneys will: Pay regular billsPay regular bills Manage income and expenditureManage income and expenditure Buy or sell propertyBuy or sell property Manage investments or even carry on a Manage investments or even carry on a

businessbusiness

LPA’s – Personal WelfareLPA’s – Personal Welfare

Attorneys for personal welfare Attorneys for personal welfare may make decisions that you may make decisions that you would normally make about your would normally make about your welfarewelfare

Where you live and with whomWhere you live and with whom Accessing your medical recordsAccessing your medical records Deciding what you wearDeciding what you wear Deciding what you eat.Deciding what you eat.

LPA’s – Personal WelfareLPA’s – Personal Welfare

Consent to or refuse to consent Consent to or refuse to consent to:to:

Life sustaining treatmentLife sustaining treatment- Artificial nutrition or hydrationArtificial nutrition or hydration- Any decision a doctor considers Any decision a doctor considers

necessary to sustain lifenecessary to sustain life The LPA must specify the The LPA must specify the

donors intentions and donors intentions and instructionsinstructions

Back Door Euthanasia?Back Door Euthanasia?

NO. Section 62 of the Act NO. Section 62 of the Act emphasises that nothing done in the emphasises that nothing done in the Act effects laws relating to murder, Act effects laws relating to murder, manslaughter or section 2 of the manslaughter or section 2 of the Suicide Act 1961Suicide Act 1961

Section 4(5) of the Act states that no Section 4(5) of the Act states that no one can make a decision about life one can make a decision about life sustaining treatment if they are sustaining treatment if they are motivated by a desire to bring about motivated by a desire to bring about deathdeath

How are attorneys appointed?How are attorneys appointed?

A single attorneyA single attorney More than one attorney – to actMore than one attorney – to act- TogetherTogether- Together and independentlyTogether and independently- Together in respect of some matters Together in respect of some matters

and together and independently in and together and independently in respect of othersrespect of others

Replacement attorneyReplacement attorney

LPA instrument (the form)LPA instrument (the form)

Prescribed information – the donor Prescribed information – the donor and attorney(s) will need to read the and attorney(s) will need to read the prescribed information and confirm prescribed information and confirm they have, it can be read to someone they have, it can be read to someone unable to read/see.unable to read/see.

Part A – Donors statementPart A – Donors statement Part B – Certificate providers Part B – Certificate providers

statementstatement Part C – Attorneys statement Part C – Attorneys statement

Notifiable PartiesNotifiable Parties

The donor includes in Part A, up The donor includes in Part A, up to 5 named parties who are to to 5 named parties who are to be informed at the point of be informed at the point of registrationregistration

If the donor decides not to If the donor decides not to inform any named parties, there inform any named parties, there must be two separate certificate must be two separate certificate providers.providers.

Certification ProcessCertification Process

The certificate provider confirms The certificate provider confirms that the donors understanding of that the donors understanding of the LPAthe LPA

Two categories of certificate Two categories of certificate providerprovider

At least one certificate provider At least one certificate provider required – two needed where no required – two needed where no notifiable persons have been notifiable persons have been named.named.

Two types of certificate Two types of certificate providerprovider Category A – Knowledge CertificationCategory A – Knowledge Certification- Have to have known donor personally over Have to have known donor personally over

the past two yearsthe past two years Category B – Skills CertificationCategory B – Skills Certification- Registered healthcare providerRegistered healthcare provider- Barrister, solicitor or advocateBarrister, solicitor or advocate- Registered social workerRegistered social worker- None of the above but consider themselves None of the above but consider themselves

to have relevant professional skills and to have relevant professional skills and expertise to be a certificate providerexpertise to be a certificate provider

Registration Process - 1Registration Process - 1

Registration costs £150Registration costs £150 Objections on factual grounds Objections on factual grounds

must be made to the OPG – for must be made to the OPG – for exampleexample

BankruptcyBankruptcy Death of attorneyDeath of attorney Death of donorDeath of donor

Registration Process - 2Registration Process - 2

Objections on prescribed grounds must be Objections on prescribed grounds must be made to the COP – for examplemade to the COP – for example

The person objecting does not believe the The person objecting does not believe the donor had capacity to make an LPAdonor had capacity to make an LPA

The donor revoked the LPA when they had The donor revoked the LPA when they had capacitycapacity

Fraud or undue pressure was used to Fraud or undue pressure was used to induce the donor to make an LPAinduce the donor to make an LPA

The attorney is not acting in the donors The attorney is not acting in the donors best interestsbest interests

Safeguards and benefitsSafeguards and benefits

Choice of notifiable partiesChoice of notifiable parties Certification processCertification process Attorney must have regard to Attorney must have regard to

the Code of Practicethe Code of Practice Restrictions and conditions can Restrictions and conditions can

be made in the LPAbe made in the LPA Option of replacement attorneyOption of replacement attorney

So what do I do?So what do I do?

Always get a copy of the LPAAlways get a copy of the LPA It cannot be used unless it is It cannot be used unless it is

registered (this takes 6 weeks)registered (this takes 6 weeks) Cannot be used if an objection Cannot be used if an objection

is lodgedis lodged Remember an LPA can be Remember an LPA can be

registered before you need to registered before you need to use ituse it

So what do I do?So what do I do?

Check a personal welfare LPA Check a personal welfare LPA against any Advanced Decision against any Advanced Decision to Refuse Medical Treatmentto Refuse Medical Treatment

- If advanced decision was made If advanced decision was made before the LPA, the LPA before the LPA, the LPA overturns it.overturns it.

- If advanced decision is made If advanced decision is made after an LPA, the advanced after an LPA, the advanced decision takes prioritydecision takes priority

Further Information and FormsFurther Information and Forms

Office of the Public GuardianOffice of the Public Guardian www.opg.gov.ukwww.opg.gov.uk All forms available including All forms available including

application to waive or delay feesapplication to waive or delay fees

Although not required by law, this is Although not required by law, this is a very complex business and simple a very complex business and simple mistakes can invalidate the LPA – so mistakes can invalidate the LPA – so independent legal advice is in your independent legal advice is in your own interestsown interests

So what do I do?So what do I do?

A property and affairs LPA can be A property and affairs LPA can be used as soon as it is registered, in used as soon as it is registered, in other words before you lose capacity other words before you lose capacity as well as afterwardsas well as afterwards

A personal welfare LPA can only be A personal welfare LPA can only be used when you lose capacityused when you lose capacity

A valid attorney is always the A valid attorney is always the decision maker for LPA approved decision maker for LPA approved actionsactions